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TASMANIA
__________
CRIMINAL CODE AMENDMENT (CHILD
EXPLOITATION) BILL 2005
__________
CONTENTS
PART 1 PRELIMINARY
1. Short title
2. Commencement
PART 2 CRIMINAL CODE ACT 1924 AMENDED
3. Principal Act
4. Schedule 1 amended (Criminal Code)
PART 3 CLASSIFICATION (PUBLICATIONS, FILMS AND
COMPUTER GAMES) ENFORCEMENT ACT 1995
AMENDED
5. Principal Act
6. Section 3 amended (Interpretation)
7. Part 8: Heading amended
8. Section 71 amended (Interpretation of Part)
9. Section 72 amended (Offence to make or reproduce bestiality
product)
10. Section 72A inserted
72A. Offence to make or reproduce child exploitation
material
11. Section 73 substituted
73. Offence to procure child to be involved in making
child exploitation material
[Bill 37]-I
73A. Offence to distribute child exploitation material
12. Section 74 amended (Offence to possess bestiality product)
13. Sections 74A and 74B inserted
74A. Possession of child exploitation material
74B. Defence to offences in respect of child exploitation
material
14. Section 77 substituted
77. Forfeiture of child exploitation material, &c.
15. Section 79 amended (Proceedings on prosecutions)
16. Section 81 amended (Defence to offences with respect to
minors)
2
CRIMINAL CODE AMENDMENT (CHILD
EXPLOITATION) BILL 2005
(Brought in by the Minister for Justice and Industrial
Relations, the Honourable Judith Louise Jackson)
A BILL FOR
An Act to amend the Criminal Code Act 1924
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 PRELIMINARY
1. Short title
This Act may be cited as the Criminal Code
Amendment (Child Exploitation) Act 2005.
2. Commencement
This Act commences on a day to be proclaimed.
[Bill 37] 3
s. 3 No. Criminal Code Amendment (Child 2005
Exploitation)
PART 2 CRIMINAL CODE ACT 1924 AMENDED
3. Principal Act
In this Part, the Criminal Code Act 1924* is
referred to as the Principal Act.
4. Schedule 1 amended (Criminal Code)
Schedule 1 to the Principal Act is amended as
follows:
(a) by inserting the following section after
section 1:
1A. Definitions for purposes of
sections 130, 130A, 130B, 130C, 130D,
130E, 130F, 130G and 337C
For the purposes of sections 130,
130A, 130B, 130C, 130D, 130E,
130F, 130G and 337C
"access", in relation to
material, includes the
display of the material by
an electronic medium or
any other output of the
material by an electronic
medium;
"child exploitation material"
means material that
describes or depicts, in a
way that a reasonable
*No. 69 of 1924
4
2005 Criminal Code Amendment (Child No. s. 4
Exploitation)
person would regard as
being, in all the
circumstances, offensive,
a person who is or who
appears to be under the
age of 18 years
(a) engaged in sexual
activity; or
(b) in a sexual
context; or
(c) as the subject of
torture, cruelty or
abuse (whether or
not in a sexual
context);
"electronic medium" means
any thing that contains
data from which text,
images or sound can be
generated;
"material" includes any film,
printed matter, electronic
data and any other thing
of any kind (including any
computer image or other
depiction);
"person" includes part of a
person;
"produce" includes make,
film, print, photograph
and record.
5
s. 4 No. Criminal Code Amendment (Child 2005
Exploitation)
(b) by inserting the following sections after
section 125B:
125C. Procuring unlawful sexual
intercourse with person under 17
years, &c.
(1) In this section
"young person" means a
person under the age of
17 years.
(2) A person who procures
(a) a young person to have
unlawful sexual
intercourse with another
person, either in this State
or elsewhere; or
(b) another person to have
unlawful sexual
intercourse with a young
person, either in this State
or elsewhere
is guilty of a crime.
Charge: Procuring unlawful sexual
intercourse with young
person.
(3) A person who procures
(a) a young person to commit
an indecent act, either in
this State or elsewhere; or
6
2005 Criminal Code Amendment (Child No. s. 4
Exploitation)
(b) another person to do an
indecent act with, or
directed at, a young
person, either in this State
or elsewhere
is guilty of a crime.
Charge: Procuring indecent act by,
or with, young person.
(4) In any case in which it is
provided that the consent of a
person to the act charged is a
defence to a charge under
section 124 or 125B, the like
consent to an act which is the
subject of the alleged
procurement given under the like
conditions as to the age of the
parties is a defence to a charge
under this section.
(5) It is also a defence to a charge
under this section to prove that
the accused person believed on
reasonable grounds that the
young person was of or above the
age of 17 years.
125D. Communications with intent to
procure person under 17 years, &c.
(1) A person (the "accused person")
who makes a communication by
any means with the intention of
procuring a person under the age
of 17 years, or a person the
accused person believes is under
7
s. 4 No. Criminal Code Amendment (Child 2005
Exploitation)
the age of 17 years, to engage in
an unlawful sexual act, either in
this State or elsewhere, is guilty
of a crime.
Charge: Communicating with
intent to procure a person
under the age of 17 years
to engage in an unlawful
sexual act.
(2) For the purposes of
subsection (1)
"unlawful sexual act" means
an act that would, if
committed in relation to a
person under the age of
17 years, constitute an
offence under section 124,
125B, 126, 127, 127A,
133 or 185.
(3) A person (the "accused person")
who makes a communication by
any means with the intention of
exposing, without legitimate
reason, a person under the age of
17 years, or a person the accused
person believes is under the age
of 17 years, to any indecent
material, either in this State or
elsewhere, is guilty of a crime.
Charge: Making a communication
with the intention of
exposing a person under
the age of 17 years to
indecent material.
8
2005 Criminal Code Amendment (Child No. s. 4
Exploitation)
(4) For the purposes of
subsection (3)
"indecent material" means
any indecent film, printed
matter, electronic data and
any other thing of any
kind (including any
computer image or
depiction).
(5) It is a defence to a charge under
this section to prove that
(a) the person who received
the communication, or to
whom the communication
was directed, was of or
above the age of 15 years
and the accused person
was not more than 5 years
older than that person; or
(b) the person who received
the communication, or to
whom the communication
was directed, was of or
above the age of 12 years
and the accused person
was not more than 3 years
older than that person; or
(c) the accused person
believed on reasonable
grounds that the other
person was of or above
the age of 17 years.
9
s. 4 No. Criminal Code Amendment (Child 2005
Exploitation)
(6) Subsections (1) and (3) apply
notwithstanding that the person
who received the communication,
or to whom the communication
was directed, was a person of or
above the age of 17 years who
was represented to the accused
person as a person under the age
of 17 years with a fictitious
identity.
(7) Evidence that the person who
received the communication, or
to whom the communication was
directed, was represented to the
accused person as being under the
age of 17 years is, in the absence
of evidence to the contrary, proof
that the accused person believed
the person was under that age.
(c) by omitting from section 129(a)
"elsewhere;" and substituting
"elsewhere; or";
(d) by omitting from section 129(b)
"elsewhere; or" and substituting
"elsewhere ";
(e) by omitting paragraph (c) from section
129;
(f) by omitting the charge from section 129
and substituting the following charge:
Charge: Procuring by threats [or fraud].
(g) by inserting the following sections after
section 129:
10
2005 Criminal Code Amendment (Child No. s. 4
Exploitation)
130. Involving person under 18 years in
production of child exploitation
material
A person who
(a) involves, or does anything
to facilitate the
involvement of, a person
under the age of 18 years
in the production of child
exploitation material; and
(b) knows, or ought to have
known, that the material
is or will be child
exploitation material
is guilty of a crime.
Charge: Involving a person under
the age of 18 years in the
production of child
exploitation material.
130A. Production of child exploitation
material
A person who
(a) produces, or does any
thing to facilitate the
production of, child
exploitation material; and
(b) knows, or ought to have
known, that the material
is or will be child
exploitation material
11
s. 4 No. Criminal Code Amendment (Child 2005
Exploitation)
is guilty of a crime.
Charge: Producing child
exploitation material.
130B. Distribution of child exploitation
material
(1) A person who
(a) distributes, or does
anything to facilitate the
distribution of, child
exploitation material; and
(b) knows, or ought to have
known, that the material
is child exploitation
material
is guilty of a crime.
Charge: Distributing child
exploitation material.
(2) For the purposes of
subsection (1)
"distribute", in relation to
child exploitation
material, includes
(a) send, sell, deal, supply,
exhibit, transmit or
communicate that
material to another
person, or enter into an
agreement or arrangement
to do so; and
12
2005 Criminal Code Amendment (Child No. s. 4
Exploitation)
(b) make that material
available for access by
another person, or enter
into an agreement or
arrangement to do so.
130C. Possession of child exploitation
material
A person who
(a) is in possession of child
exploitation material; and
(b) knows, or ought to have
known, that the material
is child exploitation
material
is guilty of a crime.
Charge: Possessing child
exploitation material.
130D. Accessing child exploitation material
A person who, with intent to
access child exploitation material,
accesses child exploitation
material is guilty of a crime.
Charge: Accessing child
exploitation material.
130E. Defences in relation to child
exploitation material
(1) It is a defence to a charge under
section 130, 130A, 130B, 130C
or 130D to prove that
13
s. 4 No. Criminal Code Amendment (Child 2005
Exploitation)
(a) the material which is the
subject of the charge was
classified (whether before
or after the commission of
the alleged offence) under
the Classification
(Publications, Films and
Computer Games) Act
1995 of the
Commonwealth, other
than as refused
classification (RC); or
(b) the accused person
engaged in the conduct
that is alleged to
constitute the offence for
a genuine child
protection, scientific,
medical, legal, artistic or
public benefit purpose
and the accused person's
conduct was, in the
circumstances, reasonable
for that purpose; or
(c) the accused person was a
police officer acting in the
course of his or her
official duties and the
accused person's conduct
was reasonable, in the
circumstances, for the
performance of the duties;
or
(d) the accused person was
acting in the course of his
14
2005 Criminal Code Amendment (Child No. s. 4
Exploitation)
or her official duties in
connection with the
classification of the
material which is the
subject of the charge
under the Classification
(Publications, Films and
Computer Games) Act
1995 of the
Commonwealth.
(2) It is also a defence to a charge
under section 130, 130A, 130C or
130D to prove that the material
which is the subject of the charge
depicts sexual activity between
the accused person and a person
under the age of 18 years that is
not an unlawful sexual act.
(3) It is also a defence to a charge
under section 130C to prove
that
(a) the material which is the
subject of the charge
came into the accused
person's possession
unsolicited; and
(b) as soon as the accused
person became aware that
it was child exploitation
material, he or she took
reasonable steps to
dispose of that material.
(4) For the purposes of this section
15
s. 4 No. Criminal Code Amendment (Child 2005
Exploitation)
"police officer" includes
(a) a member of the
Australian Federal
Police; and
(b) a member of the
police force or
service of another
State or a
Territory of the
Commonwealth;
"unlawful sexual act" means
an act that constitutes an
offence under section 124,
125B, 126, 127, 127A,
133 or 185.
130F. Forfeiture of child exploitation
material, &c.
(1) This section applies if a person is
prosecuted for a crime under
section 130, 130A, 130B, 130C
or 130D.
(2) The court may, if it considers
material which is the subject of a
charge under any of the sections
referred to in subsection (1) to be
child exploitation material, order
that the material be forfeited to
the Crown.
(3) The court may make an order
under subsection (2) whether or
not the person is convicted of a
16
2005 Criminal Code Amendment (Child No. s. 4
Exploitation)
crime under any of the sections
referred to in subsection (1).
(4) If the person is convicted of a
crime under any of the sections
referred to in subsection (1), the
court may also order that any
thing used to commit the crime be
forfeited to the Crown.
(5) The court may also make any
order that it considers appropriate
to enforce the forfeiture.
(6) This section does not limit the
court's powers under the Crime
(Confiscation of Profits) Act 1993
or any other law.
(7) When any material or thing is
forfeited to the Crown, the
material or thing becomes the
Crown's property and may be
disposed of or destroyed in such
manner as the Attorney-General
may direct.
130G. Excluding non-essential persons from
court when child exploitation
material displayed
(1) When material alleged to be child
exploitation material is on display
in court, the court may exclude
from the court any person who is
not an essential person.
17
s. 4 No. Criminal Code Amendment (Child 2005
Exploitation)
(2) For the purposes of
subsection (1), an "essential
person" is
(a) a party, or a person
representing a party, to
the proceeding in relation
to the child exploitation
material; or
(b) a Crown Law Officer or a
person authorised by a
Crown Law Officer; or
(c) the prosecutor; or
(d) a witness giving evidence;
or
(e) a person who a witness is
entitled to have present in
court under the Evidence
(Children and Special
Witnesses) Act 2001; or
(f) a person whose presence
is, in the court's opinion,
necessary or desirable for
the proper conduct of the
proceeding; or
(g) a person who applies to
the court to be present and
whose presence, in the
court's opinion
(i) would serve a
proper interest of
the person; and
18
2005 Criminal Code Amendment (Child No. s. 4
Exploitation)
(ii) would not be
prejudicial to the
interests of any
person under the
age of 18 years
described or
depicted in the
child exploitation
material, whether
or not any person
under the age of
18 years can be
identified from the
child exploitation
material.
(3) When forming an opinion under
subsection (2)(f) or (g), the court
is to consider the public benefit of
limiting the number of persons
with access to child exploitation
material.
(h) by omitting section 169 and substituting
the following section:
169. Administering drug to facilitate
offence
Any person who administers or
causes another person to take any
drug, alcohol or other thing with
intent to stupefy or overpower
that person in order to facilitate
the commission of an offence, or
to facilitate the flight of an
offender after the commission or
19
s. 4 No. Criminal Code Amendment (Child 2005
Exploitation)
attempted commission of an
offence, is guilty of a crime.
Charge: Administering a drug with
intent to facilitate the
commission of an offence
[or the flight of an
offender].
(i) by omitting paragraphs (b) and (c) from
section 335 and substituting the
following paragraph:
(b) sexual intercourse with a person
with a mental impairment;
(j) by omitting paragraphs (a) and (b) from
section 336 and substituting the
following paragraph:
(a) sexual intercourse with a person
with a mental impairment;
(k) by omitting paragraphs (b) and (c) from
section 337 and substituting the
following paragraph:
(b) sexual intercourse with a person
with a mental impairment;
(l) by omitting from section 337(d)
"assault;" and substituting "assault; or";
(m) by omitting paragraphs (d) and (e) from
section 337B(1) and substituting the
following paragraph:
(d) sexual intercourse with a person
with a mental impairment;
20
2005 Criminal Code Amendment (Child No. s. 4
Exploitation)
(n) by inserting the following section after
section 337B:
337C. Involving person under 18 years in
production of child exploitation
material
Upon an indictment for involving
a person under the age of 18
years in the production of child
exploitation material, the accused
person may be convicted of
(a) producing child
exploitation material; or
(b) distributing child
exploitation material; or
(c) possessing child
exploitation material.
21
s. 5 No. Criminal Code Amendment (Child 2005
Exploitation)
PART 3 CLASSIFICATION (PUBLICATIONS, FILMS
AND COMPUTER GAMES) ENFORCEMENT ACT 1995
AMENDED
5. Principal Act
In this Part, the Classification (Publications,
Films and Computer Games) Enforcement Act
1995* is referred to as the Principal Act.
6. Section 3 amended (Interpretation)
Section 3 of the Principal Act is amended as
follows:
(a) by omitting the definitions of "child" and
"child abuse publication";
(b) by omitting paragraph (b) from the
definition of "objectionable publication".
7. Part 8: Heading amended
Part 8 of the Principal Act is amended by
omitting "CHILD ABUSE AND
BESTIALITY PRODUCTS UNLAWFUL"
from the heading to that Part and substituting
"CHILD EXPLOITATION MATERIAL
AND BESTIALITY PRODUCTS
UNLAWFUL".
*No. 105 of 1995
22
2005 Criminal Code Amendment (Child No. s. 8
Exploitation)
8. Section 71 amended (Interpretation of Part)
Section 71 of the Principal Act is amended as
follows:
(a) by inserting the following definition
before the definition of "bestiality
product":
"access", in relation to material,
includes the display of the
material by an electronic medium
or any other output of the
material by an electronic
medium;
(b) by inserting the following definition after
the definition of "bestiality product":
"child" means a person under the age
of 18 years;
(c) by omitting the definitions of "child
abuse product" and "make" and
substituting the following definitions:
"child exploitation material" means
material that describes or depicts,
in a way that a reasonable person
would regard as being, in all the
circumstances, offensive, a
person who is or who appears to
be under the age of 18 years
(a) engaged in sexual
activity; or
(b) in a sexual context; or
23
s. 9 No. Criminal Code Amendment (Child 2005
Exploitation)
(c) as the subject of torture,
cruelty or abuse (whether
or not in a sexual
context);
"electronic medium" means any
thing that contains data from
which text, images or sound can
be generated;
"make" includes produce, film, print,
photograph and record;
"material" includes any film, printed
matter, electronic data and any
other thing of any kind (including
any computer image or other
depiction);
"person" includes part of a person.
9. Section 72 amended (Offence to make or reproduce
bestiality product)
Section 72 of the Principal Act is amended as
follows:
(a) by omitting from paragraph (a) "child
abuse product or";
(b) by omitting from paragraph (b) "child
abuse product or";
(c) by omitting from paragraph (c) "child
abuse product or".
24
2005 Criminal Code Amendment (Child No. s. 10
Exploitation)
10. Section 72A inserted
After section 72 of the Principal Act, the
following section is inserted in Part 8:
72A. Offence to make or reproduce child
exploitation material
A person must not
(a) make or reproduce child
exploitation material; or
(b) cause or permit child exploitation
material to be made or
reproduced; or
(c) be in any way involved in the
making or reproduction of child
exploitation material.
Penalty: Fine not exceeding 300 penalty
units or imprisonment for a term
not exceeding 3 years, or both.
11. Section 73 substituted
Section 73 of the Principal Act is repealed and
the following sections are substituted:
73. Offence to procure child to be involved in
making child exploitation material
A person must not procure or invite or
attempt to procure a child to be involved
in the making of child exploitation
material.
25
s. 12 No. Criminal Code Amendment (Child 2005
Exploitation)
Penalty: Fine not exceeding 300 penalty
units or imprisonment for a term
not exceeding 3 years, or both.
73A. Offence to distribute child exploitation
material
(1) A person must not distribute, or do
anything to facilitate the distribution of,
child exploitation material.
Penalty: Fine not exceeding 300 penalty
units or imprisonment for a term
not exceeding 3 years, or both.
(2) In this section
"distribute" includes
(a) send, sell, deal, supply, exhibit,
transmit or communicate child
exploitation material to another
person, or enter into an agreement
or arrangement to do so; and
(b) make child exploitation material
available for access by another
person, or enter into an agreement
or arrangement to do so.
12. Section 74 amended (Offence to possess bestiality
product)
Section 74 of the Principal Act is amended by
omitting paragraph (a).
26
2005 Criminal Code Amendment (Child No. s. 13
Exploitation)
13. Sections 74A and 74B inserted
After section 74 of the Principal Act, the
following sections are inserted in Part 8:
74A. Possession of child exploitation material
A person must not
(a) possess child exploitation
material; or
(b) with intent, access, or attempt to
access, child exploitation
material.
Penalty: Fine not exceeding 200 penalty
units or imprisonment for a term
not exceeding 2 years, or both.
74B. Defence to offences in respect of child
exploitation material
(1) In any proceedings for an offence against
this Part, it is a defence to prove that
(a) the material to which the offence
relates was classified (whether
before or after the commission of
the alleged offence) under the
Commonwealth Act, other than
as refused classification (RC); or
(b) the defendant engaged in the
conduct that is alleged to
constitute the offence for a
genuine child protection,
scientific, medical, legal, artistic
or public benefit purpose and the
defendant's conduct was, in the
27
s. 13 No. Criminal Code Amendment (Child 2005
Exploitation)
circumstances, reasonable for that
purpose; or
(c) the defendant was a police officer
acting in the course of his or her
official duties and the defendant's
conduct was reasonable, in the
circumstances, for the
performance of the duties; or
(d) the defendant was acting in the
course of his or her official duties
in connection with the
classification of the material
concerned under the
Commonwealth Act; or
(e) at the time the alleged offence
was committed the defendant had
reasonable grounds to believe that
the material to which the offence
relates was not child exploitation
material.
(2) In any proceedings for an offence against
section 72A, 73 or 74A, it is also a
defence to prove that the material to
which the offence relates depicts sexual
activity between the defendant and a
person under the age of 18 years that is
not an unlawful sexual act.
(3) In any proceedings for an offence against
section 74A(a), it is also a defence to
prove that the material to which the
offence relates came into the defendant's
possession unsolicited and, as soon as the
defendant became aware that it was child
exploitation material, he or she took
28
2005 Criminal Code Amendment (Child No. s. 14
Exploitation)
reasonable steps to dispose of that
material.
(4) For the purposes of subsection (1)
"police officer" includes
(a) a member of the
Australian Federal Police;
and
(b) a member of the police
force or service of another
State or a Territory of the
Commonwealth;
"unlawful sexual act" means an act
that constitutes an offence under
section 124, 125B, 126, 127,
127A, 133 or 185 of the Criminal
Code.
14. Section 77 substituted
Section 77 of the Principal Act is repealed and
the following section is substituted:
77. Forfeiture of child exploitation material, &c.
(1) This section applies if a person is
prosecuted for an offence under Part 8.
(2) The court may, if it considers material
which is the subject of a charge for an
offence under Part 8 to be child
exploitation material or a bestiality
product, order that the material be
forfeited to the Crown.
29
s. 15 No. Criminal Code Amendment (Child 2005
Exploitation)
(3) The court may make an order under
subsection (2) whether or not the person
is convicted of the offence to which the
child exploitation material or bestiality
product relates.
(4) If the person is convicted of an offence
under Part 8, the court may also order
that any thing used to commit the offence
be forfeited to the Crown.
(5) The court may also make any order that
it considers appropriate to enforce the
forfeiture.
(6) This section does not limit the court's
powers under the Crime (Confiscation of
Profits) Act 1993 or any other law.
(7) When any material or thing is forfeited to
the Crown, the material or thing becomes
the Crown's property and may be
disposed of or destroyed in such manner
as the Attorney-General may direct.
15. Section 79 amended (Proceedings on prosecutions)
Section 79(a) of the Principal Act is amended by
omitting "section 72 or 73" and substituting
"Part 8".
16. Section 81 amended (Defence to offences with
respect to minors)
Section 81 of the Principal Act is amended by
omitting subsection (2).
30 Government Printer, Tasmania